JURIST Guest Columnist Brian Landsberg of the University of the Pacific, McGeorge School of Law says that the Ninth Circuit will likely uphold its 1997 ruling that Proposition 209, California’s ban on affirmative action, is constitutional…

Are public interest lawyers in California simply tilting at windmills in their suit to declare the state’s anti-affirmative action initiative of 1996, Proposition 209, unconstitutional as it applies to higher education? Listening to the oral argument in the US Court of Appeals for the Ninth Circuit might be enough to discourage even the most persistent opponents of Proposition 209.

The plaintiffs challenge Proposition 209 as it has been applied by the University of California. The University’s Board of Regents adopted its own policy banning consideration of race in admissions in 1995. Regent Ward Connerly then proposed Proposition 209, which bans race based preferences in government employment, contracting and education. Proponents of Proposition 209 assured the voters that it would not bar all affirmative action, but only race based preferences. The day after Proposition 209 took effect proponents of affirmative action filed suit in federal district court challenging its constitutionality. Judge Thelton Henderson agreed that it was unconstitutional and enjoined its enforcement, but the Ninth Circuit reversed. The court criticized what it viewed as a rush to judgment:

The ink on Proposition 209 was barely dry when plaintiffs filed this lawsuit. For this federal tribunal to tell the people of California that their one-day-old, never-applied-law violates the Constitution, we must have more than a vague inkling of what the law actually does.

The court of appeals rejected claims that Proposition 209 racially skewed the political process and that it treated race based preferences differently from other preferences universities might employ to promote diversity or other values. The court said:

Nothing in the Constitution suggests the anomalous and bizarre result that preferences based on the most suspect and presumptively unconstitutional classifications — race and gender — must be readily available at the lowest level of government while preferences based on any other presumptively legitimate classification — such as wealth, age or disability — are at the mercy of statewide referenda.

The plaintiffs in the 1996 case predicted that Proposition 209 would have a devastating impact on University of California enrollment of African-Americans and Latinos/Latinas. The district court agreed. However, at that stage it was just a prediction. By 2010, when the district court decided [PDF] the new challenge to Proposition 209, the prediction had become a reality for the most prestigious campuses of the University. The plaintiffs relied primarily on this change of facts. Even though California is now a majority-minority state, plaintiffs argued that only three Latinos and two African-Americans were enrolled in the entering class of the University of California at Davis School of Law, which is named after Dr. Martin Luther King (UC Davis has advised me that “There are 8 Latino/Chicano/Hispanic students and 2 African-American students in our 1L class). The state declined to defend the case, but intervenors mounted a vigorous and successful defense. The trial court held that it was bound by the 1997 Ninth Circuit ruling.

Last week the Ninth Circuit heard the appeal. The plaintiffs’ counsel sounded desperate, hyperbolically arguing that Proposition 209 amounted to “apartheid” and that the district court’s granting of a motion to dismiss the complaint was denying their clients their day in court. More persuasively, they demonstrated that non-racial efforts to maintain diversity in the University’s flagship campuses had not worked and that admissions criteria disproportionately screened out African-Americans and Latinos/Latinas. For example, one of the plaintiffs was first in her high school class, but was rejected by UC Berkeley, apparently because of a lack of Advanced Placement class offerings at her high school. They argued that educational disparities at the elementary and secondary school levels caused racial minorities to lack the credentials of students in more affluent schools. The plaintiffs suggested that the 1997 decision was based on the assumption that fair standards would be applied to university admissions, and that that assumption proved incorrect. The state agreed that Proposition 209 does not level the playing field. Under vigorous questioning from the bench, the state argued that the earlier appellate decision could be distinguished and then suggested that the case should be heard en banc so that the court could repudiate the its prior decision. The panel of judges seemed skeptical, and it seems probable that it will hold that it is bound by the earlier decision.

In a legal opinion in 2009, the California attorney general made what seemed to be a stronger argument, stating that to the extent that Proposition 209 bans activity permitted by the Fourteenth Amendment it is unconstitutional because it treats race differently than other classifications. The attorney general’s opinion points out that more recent case law suggests that race may be used, for example, as a basis for outreach to communities that have been disproportionately excluded from programs. So, recent case law is a basis on which the Ninth Circuit might rule that Proposition 209 is unconstitutional, to the extent that it bars such outreach.

Brian Landsberg is a Distinguished Professor and Scholar of Law at the University of the Pacific, McGeorge School of Law. He writes and lectures extensively on constitutional law and civil rights topics, and is the Program Director for the Pacific McGeorge Rule of Law Program in China, funded by the US Agency for International Development.